DATE: NOVEMBER 12, 1993
CASE NO: 93-ERA-0023
In The Matter of
THOMAS J. SAPORITO, JR.
Complainant
v .
FLORIDA POWER & LIGHT COMPANY,
Respondent
Appearances:
THOMAS J. SAPORITO
Pro Se
JAMES S. BRAMNICK, ESQ.
PAUL C. HEIDMANN, ESQ.
For Respondent
Before: E. EARL THOMAS
District Chief Judge
RECOMMENDED DECISION AND ORDER
This proceeding arose under the Energy Reorganization Act of
1974, as amended, (hereinafter "Act") 42 U.S.C. §5851, and
the implementing regulations found in 29 Code of Federal
Regulations, Part 24. These provisions, commonly known as part of
the environmental "whistleblower" provisions. protect employees
against discrimination in employment for attempting to implement
the purposes of the Energy Reorganization Act and the Atomic
Energy Act, as amended, found at 42 U.S.C. §2011 et seq.
A hearing was held in Miami, Florida on September 7, 1993.
All parties were afforded full opportunity to present evidence and
legal argument. The evidentiary record, as finally comprised,
consists of the transcript (Tr.), Complainant's exhibits 1-9 (EX),
and Respondent's exhibits 1-3 (RX).
[PAGE 2]
STATEMENT OF THE CASE
This case stems from a complaint dated October 21, 1992 by
Thomas J. Saporito, Jr. in which he alleges that a telephone call
by an unidentified caller from Respondent, Florida Power & Light
Co. (hereinafter "FP&L"), was made to warn the Vice President for
Nuclear Operations at Arizona Public Service company (hereinafter
"APSC") that Saporito was working there. This "one specific act"
is alleged to constitute "blacklisting" and to be responsible for
the termination of his employment at APSC. See Saporito
Complaint, p.8.
The complaint recites Saporito's employment history beginning
with FP&L in 1982 as an Instrument Control (I&C) technician. His
termination from that position on December 22, 1988 was the
subject of discrimination cases heard by Administrative Law Judge
Anthony J. Iacobo (Case Nos. 89-ERA-7, 89-ERA-8, June 30, 1989),
now pending before the Secretary of Labor. RX 1. Thereafter, he
continued to be involved in various activities regarding the
operation of FP&L's Turkey Point Nuclear Plant. He petitioned to
intervene both individually and through his non-profit
organization, Nuclear Energy Accountability Project, in
proceedings before the Nuclear Regulatory commission (hereinafter
"NRC").
Saporito became an electronics instructor at the ATI Career
Training Center in Miami in December, 1989. A letter of inquiry
to ATI by FP&L counsel sent in order to verify Saporito's
employment as a basis for eligibility in an FP&L licensing
proceeding before the NRC was alleged to have been a factor in his
termination at ATI on May 10, 1990. The circumstances surrounding
that termination were the subject of a proceeding before the
undersigned. (Case Nos. 90-ERA-27, 90-ERA-47, November 6, 1990).
RX 2. Those matters currently are pending before the Secretary.
Following brief periods of self-employment, Saporito obtained
a position as an I&C technician at the APSC Palo Verde nuclear
plant through a contract with the Atlanta Group on September 29,
1991. His termination as a contract worker on December 31, 1991
was the subject of a complaint and subsequent hearing before
Administrative Law Judge Michael P. Lesniak (Case No. 92-ERA-30,
May 10, 1993). CX 2. That matter is pending before the Secretary.
The Wage and Hour Division of the Employment Standards
Division of the Department of Labor conducted an investigation of
[PAGE 3]
the facts alleged in the complaint. Complainant was advised by
the District Director on February 17, 1993 that the investigation
did not substantiate that an official of FP&L actually made the
call to APSC or that the intent of the call was to discriminate
against him because of his engagement in protected activities. RX
3.
At the beginning of this proceeding, Respondent filed a
motion for summary decision. Ruling on the motion was deferred
until Complainant could be given an opportunity to present
evidence. In view of the recommended nature of any ruling by the
undersigned, Respondent agreed to withdraw the motion and proceed
on the merits.
FINDINGS OF FACT
The following facts, among others, were stipulated not to be
in dispute:
1. Respondent is an employer within the meaning of the
Energy Reorganization Act;
2. Complainant worked for Respondent from March of 1982
until December 22, 1988 as an I&C Specialist at Respondent's
Turkey Point Nuclear Power Plant;
3. W.F. Conway was employed by Respondent as Senior Vice
President-Nuclear from January 31, 1988 until May 6, 1989, and
then became Senior Executive Vice President for Nuclear Operations
at APSC's Palo Verde Nuclear Plant;
4. Conway had authority over Respondent's nuclear power
plants at Turkey Point and St. Lucie; and
5. FP&L and APSC are not affiliated organizations.
Following his discharge from FP&L on December 22, 1988, which
he believed was in retaliation for his whistleblowing activities
while employed at the Turkey Point Nuclear Plant, Thomas Saporito
was self-employed until he was hired as an Atlanta Group contract
employee by APSC on September 29, 1991. Tr. 20-22. At the end of
that contracted work, Saporito filed a Section 210 complaint
against the Atlanta Group and APSC, alleging that he was not
offered employment by them for the next scheduled outage in
February, 1992 due to retaliation for having engaged in protected
activity while working there. Id. CX 2.
[PAGE 4]
The nature of the protected activity in which Saporito was
engaged while at APSC Palo Verde is not particularly relevant to
this proceeding, but is set forth fully in Judge Lesniak's
decision in Saporito v. Arizona Public Service Company,
Case No. 92-ERA-30, ALJ Dec. May 10, 1993. CX 2. What is relevant
is the testimony in that hearing, primarily of three witnesses,
James Levine, William Simko, and William Conway, which became the
genesis of this litigation.
The decision in Saporito v. Arizona Public Service
Company was offered as evidence by Complainant and admitted
without objection. Judge Lesniak's findings, numbered 338-340,
set forth below, are consistent with the other evidence provided
in this case and except for a small discrepancy in Levine's
version of "the call", are adopted for purposes of this decision.
His references to other paragraphs in his decision have been
deleted.
339. James Levine, Vice President of Nuclear Production at
PVNGS, who answers only to Bill Conway, Executive Vice
President for Nuclear Operations, received a telephone call
which had come in for Mr. Conway prior to the Unit 2 outage
in the fall of 1991.
Apparently when the person calling found out that Conway was
not there, he asked to speak to Levine. The individual
stated that he was with Florida Power and Light and told
Levine he wanted to inform Conway that he understood Mr. Tom
Saporito was working at Palo Verde. Levine was aware that
Mr. Conway was a former employee of Florida Power and Light
(as Executive vice President for Nuclear Operations) and when
Mr. Conway came back to town, Levine gave him the message.
At one point, Levine asked through the maintenance
organization if they had an employee named Tom Saporito. He
believed he called Bill Simko who was the maintenance manager
for Unit 2. After Levine asked Simko to find out if Tom
Saporito was working at APS, Simko told Levine that there was
someone under contract with that name. Levine's direction to
Simko was to treat Saporito like every other employee. When
Levine talked to Conway about Saporito, he probably asked the
significance of the call from the individual. Levine
believed that they had a short discussion that Saporito had
voiced concerns at Florida Power. Levine had about two or
three conversations with Conway about Saporito.
340. William Simko actually reported to Ron Flood who
reported to Jim Levine. Simko had conversations about
Saporito being previously employed by Florida Power and Light
[PAGE 5]
with Jim Levine and Steve Grove. In approximately September 1991,
Simko received a telephone call from Levine who wanted to know if
they had hired Saporito. Simko checked with Steven Grove and
determined that Saporito had been hired. After advising Levine of
Saporito's employment, Levine then asked if Saporito had worked at
Florida Power and Light. Simko did not know, so he went back to
Steve Grove and found out that Saporito had worked at Florida
Power and relayed the information to Levine. Levine said, "Okay,
I'll call you back." Several days later, Levine advised Simko that
there had been problems at Florida Power with Saporito and that he
wanted to make sure that Saporito did a good job for them at Palo
Verde. Simko said, "okay." During Simko's career at Palo Verde,
(over ten years) he did not remember Mr. Levine ever calling
before and asking him to check on someone's background. It was
not normal for Levine to directly call Simko since there was a
person in between, Mr. Flood.
341. William Conway, Executive Vice President for Nuclear
Operations at APS, was also employed by Florida Power and
Light company as senior Vice President Nuclear in early
February of 1988 and terminated there in early May of 1989.
While Conway was employed at Florida Power and Light, he
learned that Saporito's employment was terminated at their
Turkey Point Nuclear Station. Conway also knew that Saporito
identified safety concerns to NCR and recalled a radio
broadcast in March or April of 1989 on the West Palm Beach,
Florida, radio station wherein Saporito was interviewed and
identified various concerns relative to Turkey Point.
Saporito's termination and his safety concerns at Turkey
Point were high visibility issues with the news media.
Sometime in August or September of 1991, Conway discussed
Saporito with James Levine. Levine informed Conway that
Saporito was working as an I&C technician for the Unit 2
refueling outage and that Saporito previously worked at
Florida Power. Conway acknowledged to Levine that he was
aware of Saporito's past employment and may have discussed
Saporito's firing from Florida Power. Conway's instructions
to Levine were that Saporito was to be treated like anyone
else. Conway expected his wishes to more or less trickle
down to all employees and believed that Levine would tell
other people to treat Saporito the same as everyone else.
Conway expected Frank Warriner to receive the communication
that Mr. Saporito was to be treated no different from anyone
else. Conway wanted this communicated to the lowest level of
management, the foreman level. The message was that Saporito
had problems at Florida Power and he was terminated and now
he's here and Conway wanted him to be treated like everyone
[PAGE 6]
else. CX 2.
The rationale behind Judge Lesniak's decision did not
emphasize the telephone call received by Levine, apparently
because he found that there was sufficient other opportunity for
the alleged APSC discriminating official to learn of protected
activity in which Saporito had engaged. However, because that
telephone call forms the basis for Saporito's charge of
"blacklisting" it will be examined in more detail.
Although Levine says he received the call intended for Conway
in August of September, 1991, he did not provide a precise date.
Regardless, it was after Saporito had been hired. CX 2, pp.68,
69. Levine believes the caller was from out of town but does not
remember his name. The caller wanted to inform Conway that it was
his understanding that Saporito was working at Palo Verde. Levine
did not say why he believed the caller was from FP&L and did not
know his position. CX 3, pp.1002-1008. Levine told DOL
investigators that the caller did not mention Saporito's
activities at FP&L and did not attempt to "blacklist" Saporito. CX
9.
William Conway was a Senior Nuclear Vice President at FP&L
when Saporito was terminated there in 1988. He was aware of
Saporito's whistleblowing activities. Tr. 130 and CX 2, p.23.
Conway was interviewed at APSC by DOL Wage and Hour investigators.
He provided a statement that, to his knowledge, no one at FP&L had
ever tried to blacklist Saporito. CX 8.
Saporito's whistleblowing activities at FP&L were well known
by many employees at APSC who knew nothing about the phone call.
A number of APSC employees had worked with Saporito at FP&L and
either knew him or knew of him there. CX 2. APSC Supervisor
Groeneveld knew Saporito was fired at FP&L and knew his reputation
as a trouble maker. CX 2, p.5. Groeneveld had conversations with
ten to fifteen APSC workers about Saporito. Rex Smith had worked
with Saporito at FP&L and knew twenty other technicians at APSC
who knew Saporito. CX 2, p.6.
Saporito has been interviewed on public television, radio and
the print media numerous times about his whistleblowing
activities. CX 2, p.37. Complainant exhibit 1 is a collection of
over 80 newspaper articles about Saporito. He has written letters
to the Presidents of the United States and Russia complaining
about the Turkey Point FP&L operation and the U.S. Nuclear
Regulatory commission. While at Turkey Point, he filed some 50
labor grievances. CX 2, p.37.
[PAGE 7]
The only testimony at this hearing was provided by Saporito
and Jerome Goldberg, who has been President of the Nuclear
Division at FP&L since September, 1989. Tr. 30. The Nuclear
Division has 2,500 employees. Tr. 83. Goldberg's and Saporito's
names sometimes appeared together in the media at the time
Saporito was raising concerns at FP&L. Tr. 45.
Goldgerg knew Conway before the latter came to work for FP&L,
but his familiarity was purely business and contacts between the
two were limited to industry meetings. Tr. 43. During the time
Saporito was employed by APSC, Goldberg never discussed or
mentioned Saporito to Conway. Actually, he did not recall
Saporito's name ever being mentioned between them. Tr. 56 He has
no knowledge of any FP&L official ever contacting APSC and
mentioning Saporito's name.
Saporito testified that during his career in teh nuclear
industry, he has identified concerns to the Nuclear Regulatory
Commission about FP&L, APSC and other nuclear plants in the United
States. Tr. 98. He believed that it was well known by Palo Verde
employees that he had been fired at Turkey Point. Tr. 123. As a
result, he was isolated by his coworkers. They would not sit with
him at lunch nad asked not to be assigned to work with him. One
employee told Saporito that he had seen him on the CNN Network
News. During a confrontation, another APSC employee, Bill
McCullough pushed Saporito into a security fence. Id.
Saporito felt that management ag APSC became hostile when he
continued to raise safety concerns, but he was not able to link
this alleged hostility to any communicaion from FP&L. Tr. 124.
He admitted that he has noevidence as to the identity of the FP&L
caller. Nor does he have any evidence that the caller acutally
worked for FP&L or what the caller's motive was. Tr. 129.
Although Saporito alleged that FP&L employees such as Russil
Holdren called APSC employee friends, Rex Smith and Mike Farrigan,
he does not know what the intent of the calls was. Tr. 136.
Saporito did not identify any FP&L manager or supervisor who
called anyone at APSC about him.
Frank Warriner was the APSC Unit I Instrument and Control
Technician Supervisor who rejected Saporito's resume and
application for contract employment for the Unit I outage at APSC.
CX 2, P.41. Although there was no direct evidence in Saporito
v. Arizona Public Service Company as to Warriner's knowledge
of Saporito, Judge Lesniak found that prior to his determinations
not to select Saporoto, the opportunity existed for Warriner to
have
[PAGE 8]
received information that Saporito had engaged in protected
activity. CX 2, p.67. After the trial, on August 10, 1993,
Conway wrote a letter to Nuclear Regulatory Commission Chief Bobby
H. Faulkenberry stating that on August 8, 1993, Warriner admitted
to APSC legal counsel that his testimony regarding his knowledge
of Saporito's activities and the reasons he gave for not selecting
Saporito were not truthful. He had learned of Saporito's
protected activity from the Unit II supervisor. However, Warriner
indicated that his misconduct was his sole decision and that no
one at APSC influenced him not to select Saporito. CX 7.
Although Warriner's discriminatory conduct was the basis for
Judge Lesniak's decision, it is not evidence that anyone at FP&L
had anything to do with Saporito's termination at APSC. Other
than the very limited information provided by Levine's testimony
in the Saporito hearing, nothing submitted from that record
or anything in this one provides any information in addition to
Levine's recollection that he received a phone call intended for
Conway, the purpose of which was to advise that Saporito worked
for APSC.
Because neither Levine's prior testimony nor anything in this
record identifies the caller, I cannot find that the caller was in
fact an FP&L employee or representative. Consequently, I do not
find that the caller was an FP&L supervisor, manager, or agent.
Moreover, there is no evidence of the caller's motive, except to
alert Conway that APSC had an employee named Saporito.
CONCLUSIONS OF LAW
This case was brought under the Employee Protection Provision
of 42 U.S.C. §5851. The statute provides:
No employer, including a Commission licensee, an
applicant for a Commission license, or a contractor or a
subcontractor of a Commission licensee or applicant, may
discharge any employee or otherwise discriminate against
any employee with respect to his compensation, terms,
conditions, or privileges of employment because the
employee (or any person acting pursuant to a request of
the employee)..
(1) commenced, cause to be commenced, or is about
to commence or cause to be commenced a proceeding
under this chapter or the Atomic Energy Act of
1954, as amended [42 U.S.C.A. §2011 et
seq.], or a proceeding for the
administration or enforcement of
[PAGE 9]
any requirement imposed under this chapter or the Atomic Energy
Act of 1954, as amended;
(2) testified or is about to testify in any such
proceeding or;
(3) assisted or participated or is about to assist
or participate in any manner in such a proceeding
or in any other manner in such a proceeding or in
any other action to carry out the purposes of this
chapter or the Atomic Energy Act of 1954, as
amended [42 U.S.C.A. §2011 et
seq.].
To sustain a discrimination claim under the Whistleblower
Protection Provision of the Energy Reorganization Act, the
Complainant must prove, by a preponderance of the evidence, that:
(1) the party charged with discrimination is an employer subject
to the Act;
(2) the complainant was an employee under the Act;
(3) the complaining employee was discharged or otherwise
discriminated against with respect to his or her compensation,
terms, conditions, or privileges of employment;
(4) the employee engaged in protected activity;
(5) the employer knew or had knowledge that the employee engaged
in protected activity; and
(6) the retaliation against the employee was motivated, at least
in part, by the employee's engaging in protected
activity.1/
Once the complainant establishes a prima facie case, the
burden of proof shifts to the respondent to prove affirmatively
that the same decision would have been made even if the employee
had not engaged in protected activity.2/
[PAGE 10]
As mentioned above, Respondent stipulated that it is an
employer within the meaning of the Act, and that Saporito was an
FP&L employee from March of 1982 until December 22, 1988. Even
though Saporito would continue to meet the definition of
"employee" through his prior FP&L employment,3/ his
subsequent employment with APSC easily brings him under the
Secretary's broad definition in Hill v. Tennessee Valley
Authority, 87 ERA 23 and 24 (Sec'y, May 24, 1989).
At least some of the activities in which Saporito engaged,
both at FP&L and APSC, were found to have been protected in
Saporito v. Florida Power and Light, 89 ERA 7 and 17 (ALJ,
June 30, 1989), and Saporito v. Arizona Public Service Company,
92 ERA 30 (ALJ, May 10, 1993).4/ Moreover, there was
uncontradicted testimony from Saporito that he had engaged in
protected activities at Turkey Point and Palos Verde. Tr. 98.
FP&L was aware, through its managers and previous litigation, that
Saporito engaged in protected activity.
In order to complete the requirements for a prima
facie case, Saporito must show, in addition to the above
elements, that he was somehow the victim of discrimination or
retaliation, as he alleged in this case. In the leading case of
Howard v. TennesseeValley Authority, 90-ERA-24
(Sec'y, July 3, 1991), aff'd subnom., Howard v. United
States Department of Labor, 959 F.2d 234 (6th Cir. 1992), the
Secretary cited Black's Law Dictionary 154 (5th ed. 1979) for the
following definition of "blacklist:"
Blacklist. A list of persons marked out for special
avoidance, antagonism, or enmity on the part of those who
prepare the list or those among whom it is intended to
circulate; as where a trades-union "blacklists" workman who
refuse to conform to its rules, or where a list of insolvent
or untrustworthy persons is published by a commercial agency
or mercantile association.
[PAGE 11]
It is not necessary in this case to determine whether or not a
single telephone call in which a complainant's name is mentioned,
without more, would fall within the above definition. Nor is it
necessary to speculate as to the motive of the caller or whether
or not it could have been a form of retaliation. The Complainant
here has not been able to identify the caller or connect him or
her to the Respondent. Levine's recollection that the caller was
someone from FP&L is not sufficient identification to charge a
company with misconduct. The telephone call could have been made
by any one of the plant's 2,500 employees or even a non-employee
who may have known or knew of Saporito. For this reason, I
conclude that a prima facie case against Complainant was
not proven.
RECOMMENDED ORDER
Consistent with the foregoing, it is hereby recommended that
the complaint of Thomas J. Saporito, Jr. be dismissed.
_____________________________
E. Earl Thomas
District Chief Judge
EET/pc
Ft. Lauderdale, FL
[ENDNOTES]
1/DeFord v. Secretary of Labor, 700 F.2d 281,
286 (6th Cir. 1983); Mackowiak v. University Nuclear Systems,
Inc., 735 F.2d 1159, 1162 (9th Cir. 1984); Ledford v. Baltimore Gas &
ElectricCo., 83 ERA 9, slip op. ALJ at 9 (Nov. 29,
1983), adopted by SOL.
2/Ashcraft v. University of Cincinnati, 83 ERA
7, slip op. of SOL at 12-13 (Nov. 1, 1984); Mackowiak v.
University NuclearSystems, Inc., 735 F.2d 1159, 1164
(9th Cir. 1984); ConsolidatedEdison of N.Y., Inc. v.
Donovan, 673 F.2d 61, 62 (2nd Cir. 1982).
3/Greenwald v. The City of North Miami Beach,
78-SDW-1 (Sec'y, Apr. 3, 1978), aff'd, Greenwald v. North
Miami Beach, 587 F.2d 779 (5th Cir. 1979) cert. denied, 44
U.S. 826 (1979).
4/Although the decisions of the administrative law
judges are not final, the findings contained therein have been
submitted by the parties as evidence and were admitted without
objection. See CX 2, RX 1.
